Shyjan K.K. v. Regional Passport Officer, Regional Passport Office, Eranhipalam, Kozhikode

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD WEDNESDAY, THE 29TH DAY OF NOVEMBER 2017/8TH AGRAHAYANA, 1939 RSA.No. 1044 of 2017 (G) -----------------------AGAINST THE JUDGMENT AND DECREE DATED 10.03.2017 IN AS NO. 22/2016 of SUB COURT, VATAKARA AGAINST THE JUDGMENT AND DECREE DATED 19.03.2016 IN OS NO.16/2016 of MUNSIFF COURT, VATAKARA APPELLANT/APPELLANT IN A.S./PLAINTIFF IN O.S: ---------------------------------------------- SHYJAN K.K., S/O. GOPALAN, AGED 49 YEARS, KODANCHERY KUNIYIL HOUSE, MAYYANNUR POST, NOW RESIDING AT RADHANILAYAM, CHEVAYUR, KOZHIKODE DISTRICT, REPRESENTED BY POWER OF ATTORNEY AGENT RAGANI SHYJAN, W/O. SHYJAN K.K., AGED 46 YEARS, RESIDING AT RADHANILAYAM, CHEVAYUR, KOZHIKODE DISTRICT. BY ADVS.SRI.B.KRISHNAN SRI.PARTHASARATHY RESPONDENT/RESPONDENT IN A.S./DEFENDANT IN O.S: ------------------------------------------------- REGIONAL PASSPORT OFFICER, REGIONAL PASSPORT OFFICE, ERANHIPALAM, KOZHIKODE. BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------R.S.A. No.1044 of 2017** ## **-------------------------------------Dated this the 29[th] day of November, 2017** ## **JUDGMENT** Heard the learned counsel for the appellant and the Assistant Solicitor General appearing for the respondent. 2. Appellant is aggrieved by the concurrent findings of the trial court and the lower appellate court that he is not entitled to get a declaration as to his correct the date of birth and for a mandatory injunction, directing the respondent to make appropriate corrections in the passport issued to him. 3. Brief facts, relevant, are as follows:Plaintiff/appellant is Indian citizen. As per Ext.A1, attested copy of the passport, his date of birth is 11.01.1960. According to him, in Ext.A2 school admission register issued from the GHSS, Chorode, Kurikkilad Post, his date of birth is 25.05.1966. He approached the passport authorities for correcting the mistake. It was turned down. Hence he filed a suit for declaration and mandatory injunction. 4. It is seen from the impugned judgments that the respondent (Regional Passport Officer) remained absent and therefore he was set exparte by both the courts. However, the trial court as well as the lower 2 R.S.A. No.1044 of 2017 appellate court dismissed the suit, finding that merely for the reason the respondent did not contest, the appellant is not entitled to get a decree in the absence of establishing his legal right to get a declaration as sought for. The lower appellate court relying on some decisions rendered by this Court took a view as follows: _“As stated above, the date entered in the passport is 11/01/1960. The plaintiff seeks to correct it as 25/05/1966 on the basis of an extract of administration register issued from GHSS, Chorod. Ext.A2, the extract of admission register, shows that the plaintiff got admitted in the school on 29/05/1982 to 8[th] standard and he left the school on 29/06/1984 from the 9[th] standard for the reason of long absence. The plaint does not contain any statement as to when the plaintiff obtained his maiden passport and what all where the documents produced along with the passport application for the purpose of proving his date of birth at that time. Evidently, the admission register, the extract of which is produced and marked as Ext.A2 would have been in existence at the time when he applied for the passport for the first time and whenever he had renewed it. Ext.A1 is a copy of the passport which is sought to be corrected. On a perusal of Ext.A1, it is seen that the passport had been issued from Muscat. The entries in Ext.A1 shows that he_ 3 R.S.A. No.1044 of 2017 _had been issued with an earlier passport number A 9112391 1287/2004 from the Muscat. Ext.A1 and the said entry therein would make it clear that the plaintiff was employed abroad for a pretty long time and he had been renewing the passport from there. It is not stated in the plaint how many times the passport had been renewed after the original passport was issued to him. No doubt each time when the passport had been renewed the plaintiff would have filled in and submitted application for the same. It is quite difficult to believe that the fact of his date of birth having entered wrongly in the original passport had not been noticed or not brought to his knowledge at any point of time during any such renewal or at the time of applying for VISA and other residential permits abroad. It is stated in the plaint that the plaintiff noticed the mistake in the passport recently when he perused the copy of school certificate for the purpose of taking an Aadhar card. On the above statement it has to be believed that the plaintiff himself was not aware of his date of birth at any point of time before applying for the Aadhar card and he was living as if he was aged 50 when he was actually aged only 44. As per Section IV(A)(1)(v) of the Passport Act, to apply for a fresh passport any one of the following documents should be attached in proof of date of birth: (1) certificate issued by a Municipal_ 4 R.S.A. No.1044 of 2017 _Authority or District office of the registrar of birth and death: (2) date of birth certificate from the school last attended by the applicant or any other recognized education institution; or (3) an affidavit sworn before a magistrate/notary stating date/place of birth. As per the specimen in Annexure-A, so far as the applicants born on or after 26/01/1989, only birth certificate issued by the Municipal Authority or the office of the Registrar of birth and death is acceptable. Naturally the plaintiff also should have produced such documents along with his original passport application. There is nothing in the plaint stating what was the document he attached with the passport application. The plaint does not even contain a statement as to when the plaintiff had taken his first passport and how many times passport has been renewed. It is pertinent to note that every time when the passport is applied for, whether it is for re-issue or re-placement of lost or damaged passport, the applicant has to fill up form EA(P)-1 which includes date of birth also. This would show that each time when a person is applying for a passport he should fill up his date of birth in the application form. There is every chance for a person to notice mistake, if any, in the date of birth in the passport on such occasions. One cannot be heard to say that such a glaring and notable difference of 6 years in the date of birth had_ 5 R.S.A. No.1044 of 2017 _not been noticed by him during any such occasion. The case of the plaintiff that he came to notice the mistake in the date of birth only when he perused the copy of the school certificate for the purpose of taking an Aadhar card is too strange and unbelievable. It cannot be believed that a person who is employed in gulf would not have been thought of his age or date of birth or age of retirement at any time during his employment there. There is nothing in the plaint or in the affidavit of PW1 to show that there occurred inadvertent or non willful mistake in filling up application for issuance of the first passport of the plaintiff. It is pertinent to note that even though the application is for declaration with respect to date of birth of the plaintiff in a very important and solemn document issued by the Union of India, in exercise of its sovereign authority, the plaintiff has not chosen to give evidence by himself same with respect to facts which are only within personal knowledge. The proof affidavit is filed by his wife who is the power of attorney holder of the plaintiff. Evidently the power of attorney holder of the plaintiff cannot speak anything, as of authority, with respect to the date of plaintiff filling up the applications for the issuance of his maiden passport and as to how there happened a mistake in the passport. The knowledge of power of attorney holder, that the first passport of the_ 6 R.S.A. No.1044 of 2017 _plaintiff was applied for in her presence and that the applications for it was filled up by an agent on the oral instructions of the plaintiff cannot be taken into account in proving such facts when there is no evidence to show that she was personally present at the place from where the application was filled up and she witnessed all those things.”_ 5. This appeal is admitted on the following substantial question of law: _“Have not the courts below gone wrong in non-suiting the plaintiff on the basis of paragraph 5(2) of the Passport Manual, 2010, in view of the decision of this Court in_ _**Union of India v. Sunil Kumar** (2015 (3) KLT 510)”_ 6. Learned counsel for the appellant contended that the factual issues raised cannot be disputed by the respondent in the absence of contesting the case before the courts below. It is true that the respondent cannot challenge the facts in the absence of filing a written statement and contesting the case. However, the broad probability on which the claim of the appellant was rejected by the lower appellate court cannot be said to be incorrect. It is a well settled principle that in order to get a decree in a suit which is not resisted by the defendant, the plaintiff should establish his legal right. 7 R.S.A. No.1044 of 2017 7. Learned counsel relying on a Division Bench decision of this Court in **Union of India v. Sunil Kumar (2015 (3) KLT 501)** contended that the circulars referred to in the judgments of the courts below will not affect the right of appellant to get a declaration from a competent civil court. To buttress this contention, the following observations in the judgment are relied on: _“17. We do not think that the aforesaid judgment can have application to the facts of the case. First of all, there is no classification between two sets of citizens or passport holders. Here is an instance where power had been given by the Government to the PIA to correct the mistake regarding date of birth in the Passport. For the said purpose, certain procedure has to be followed. Correction can be made only if it is a mistake, either committed by the applicant or by the PIA. To ascertain whether it is a mistake or not, necessarily the original application and the records submitted at the time of issuance of the passport are to be verified. This situation is taken care of by paragraph 5.2(a). 5.2(b) concerns a different situation where the correction in the original records are made by a competent authority or educational authority. In such instance also, the original documents have to be verified. Clause (c) pertains to a different situation_ 8 R.S.A. No.1044 of 2017 _where the original files are not available at all wherein a discretion has been granted to PIA to satisfy himself about the fact that the applicant had produced the same document at the time of application and thereafter if it is found that there is satisfactory explanation, necessary corrections can be made. Clause (c) is in the form of relaxation to what is stated in clauses (a) and (b). But the said relaxation is limited to a certain period viz. the difference in the period relating to date of birth. If in a given case where the Passport Officer is not satisfied about the genuineness of the claim, it is always open for him to reject the same. Clause (c) does not provide an unlimited power to any person to approach the PIA without obtaining a court order. Right of any citizen is not affected by the aforesaid circular as it only restricts the power of PIA. Nothing prevents the applicants in approaching the Civil Court and getting a declaration of their legal status of date of birth for effecting necessary corrections in the Passport. Under such circumstances, we are of the view that, the learned Single Judge was not justified in declaring that clause (c) is void and inoperative."_ 8. In view of the binding pronouncement of law, there cannot be a dispute that the appellant is entitled to file a suit for declaration and establish before a civil court that there was a mistake in the date of birth at R.S.A. No.1044 of 2017 9 the time of entering the same in the passport and he was entitled to get a declaratory relief as claimed. 9. In the light of the aforementioned decision, there cannot be a dispute that the appellant is entitled to institute a suit for declaration for correcting his date of birth impleading the authorities constituted under the Passport Act. But, the lower appellate court rightly held that in the absence of establishing that there was a bonafide mistake at the time when the original application was filed and also the same mistake repeated when renewal applications were filed, the appellant may not be entitled to get a declaratory relief. 10. After hearing the learned counsel on both sides, I am of the view that the appellant should be given an opportunity to take steps to summon the documents in the custody of the respondent for establishing that it was a mistake which resulted in showing the wrong date of birth in the application submitted for getting a passport. Unless opportunity is given, the appellant is likely to suffer prejudice, if he has a bonafide case. In the result, the appeal is allowed. Judgment and decree passed by the lower appellate court is set aside. Substantial question of law is answered in favour of the appellant. It is made clear that the respondent/defendant cannot raise any factual contentions before the lower appellate court. Court below shall allow the appellant to produce or 10 R.S.A. No.1044 of 2017 cause to produce documents to establish his case either by resorting to discovery proceedings or otherwise. Parties shall appear before the lower appellate court on 20.12.2017. Court below shall dispose of the case on merits as expeditiously as possible on or before 29.01.2018. ## **A. HARIPRASAD, JUDGE.** **cks**